Federal judges are shrugging their shoulders, just when they need to square them. With a feckless, partisan Congress refusing to police even the most blatant illegal and unconstitutional actions of the Bush administration, the courts are essential to setting our nation back on the right path.
But some are ducking the job.
There is a reason that avoiding federal court oversight has been at the very top of the Bush & Co. agenda. Without the impairing veil of partisan politics, federal court judges often see their way clear to doing what is right rather than politically expedient.
The very idea causes flop sweat to form on the V.P.'s brow.
After an enlightened Supreme Court ruling in 2004 that said prisoners held at Guantanamo could challenge their status in court, the Defense Department stopped the flow of men into the facility and started diverting them to a more secretive prison in Afghanistan.
Anything to keep light from shining on how foreign prisoners are treated. Anything to keep from having to justify a prisoner's continued incarceration.
But when "war on terrorism" cases do get into court, the outcomes can be equally frustrating.
The case of the Chinese Muslims at Guantanamo is a perfect example. At least 18 ethnic Uighurs were picked up in Afghanistan and Pakistan. Their capture was a mistake. The Uighur beef is with China, where their culturally distinct ethnic group is a besieged minority, and not with the United States.
Nearly a year ago, a number of these men were deemed by the military not to be enemy combatants. Yet they remain incarcerated, and are into their fifth year of imprisonment.
The men can't be returned to China, where they would likely be tortured. And the Bush administration doesn't want to admit them into the United States, because that may give the Guantanamo detainees a firmer legal basis for getting into court and challenging the conditions there. So they are being held in limbo.
First, the Bush administration said that we don't have to follow the rules of due process for people we suspect of being our enemies. Now it says it can ignore those rules even for those deemed not to be our enemies, if it serves another interest.
After hearing a habeas petition of two of the Uighurs, U.S. District Judge James Robertson ruled in December that they were in fact being held illegally. But then he did something shocking. Robertson refused to provide a remedy, saying he lacked the authority to order the men's release. They had won, but they would wake up the next day and every morning for the foreseeable future with guards and shackles as companions.
"Liberty can never be secure when the judicial branch declares its impotence," wrote their lawyer Sabin Willett in his appeal directly to the Supreme Court.
He couldn't be more right. Which brings us to another case where the judiciary has relinquished its authority.
The facts of Maher Arar's case are already well known. He is the Syrian-born Canadian who was sent by the United States to Syria under a process known as extraordinary rendition, where he spent 10 months in a gravelike cell and was subject to torture. No evidence was ever uncovered of any connection between Arar and terrorism. (Not that anything would justify what happened to him.)
Arar sued the Bush administration for the maltreatment he suffered. American law prohibits sending someone to a place where there is a likelihood he will be tortured. But last month, U.S. District Court Judge David Trager barred Arar's suit from going forward.
While the judge agreed that the administration probably knew what abuses Arar would be in for, the judge refused to find the practice of extraordinary rendition illegal or unconstitutional. It was beyond the realm of the court to decide such things, he said.
Trager also bought the administration's "state secrets" argument. The judge fretted that allowing Arar's case to continue would lead to the disclosure of highly sensitive information that could affect national security or diplomatic relations. Therefore, case closed.
Why bother having a law on the books or a court apparatus for its enforcement, if the Bush administration can simply claim national security and avoid review?
Are the courts really going to let this president and vice president run the country like it's their own amusement park? Are our laws mere suggestions? Is our Constitution really too high a bar? Even the U.S. Supreme Court said war doesn't give the president a "blank check" to abuse individual rights. But some judges haven't gotten the message.
The Bush administration is writing a new playbook for our nation. All of the once-solid rules about decency, justice and the rule of law have been tossed out, for our own safety ostensibly, and replaced by Dick Cheney's audibles.
The courts have got to counterbalance this frightening slide into Bush-Cheneyland. Our laws have got to mean something again, so that our nation does.
© Copyright, St. Petersburg Times.